Table of contents section one an introduction to intellectual property
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23(1) Term of rights - "Subject to this Act, the rights conferred by sections 15, 18 and 21 terminate fifty years after the end of the calendar year in which (c) in the case of a communication signal, it was broadcast" - Basically, 50 years from the end of the year in which the signal is broadcast - Note: we only talked about s.6 and s.23(1) in class ______________________________________________________________________________________ VII. INFRINGEMENT 1) GENERALLY - The forms of infringement are defined by the forms of rights that are included in copyright by: - s.3(1) – copyright in a work - s.15(1) – copyright in a performer's performance - s.18(1) – copyright in a sound recording - s.21(1) – copyright in a communication signal
- "Subject to this Act, the author of a work shall be the first owner of the copyright therein" 27(1) Infringement generally - "It is an infringement of copyright for any person to do, without the consent of the owner of the copyright, anything that by this Act only the owner of the copyright has the right to do" - This section is about violating the monopoly of the copyright owner - Next section regards various things done when infringing copies 27(2) Secondary infringement - "It is an infringement of copyright for any person to (a) sell or rent out, (b) distribute to such an extent as to affect prejudicially the owner of the copyright, (c) by way of trade distribute, expose or offer for sale or rental, or exhibit in public, (d) possess for the purpose of doing anything referred to in paragraphs (a) to (c), or (e) import into Canada for the purpose of doing anything referred to in paragraphs (a) to (c), a copy of a work, sound recording or fixation of a performer’s performance or of a communication signal that the person knows or should have known infringes copyright or would infringe copyright if it had been made in Canada by the person who made it" - Person must "know or should have known" it would infringe copyright to trigger s.27(2) - Additionally, adds element that a person is liable if person's action "would infringe copyright if it had been made in Canada by the person who made it" - ie: you buy a DVD in China that's legal there but would be illegal in Canada…you must not sell/rent it out, distribute it, show it in public, or possess/import it into Canada for these things - Aim of this section is to stop people copying infringing copies - These infringing actions have criminal sanctions in s.42, which can catch secondary infringers when they "knowingly" do this which would mean both civil and criminal liability for offenders: 42(1) Offences and punishment - "Every person who knowingly (a) makes for sale or rental an infringing copy of a work or other subject-matter in which copyright subsists, (b) sells or rents out, or by way of trade exposes or offers for sale or rental, an infringing copy of a work or other subject-matter in which copyright subsists, (c) distributes infringing copies of a work or other subject-matter in which copyright subsists, either for the purpose of trade or to such an extent as to affect prejudicially the owner of the copyright, (d) by way of trade exhibits in public an infringing copy of a work or other subject-matter in which copyright subsists, or (e) imports for sale or rental into Canada any infringing copy of a work or other subject-matter in which copyright subsists is guilty of an offence and liable (f) on summary conviction, to a fine not exceeding twenty-five thousand dollars or to imprisonment for a term not exceeding six months or to both, or (g) on conviction on indictment, to a fine not exceeding one million dollars or to imprisonment for a term not exceeding five years or to both" - However, since criminal penalties require proof BARD that the person was knowingly infringing copyright, it's not easy to get a conviction
- "Subject to any regulations made under subsection (6), it is an infringement of copyright in a book for any person to import the book where (a) copies of the book were made with the consent of the owner of the copyright in the book in the country where the copies were made, but were imported without the consent of the owner of the copyright in the book in Canada; and (b) the person knows or should have known that the book would infringe copyright if it was made in Canada by the importer" (the test for infringement) 45(1) Exceptions - "Notwithstanding anything in this Act, it is lawful for a person (e) to import copies, made with the consent of the owner of the copyright in the country where they were made, of any used books, except textbooks of a scientific, technical or scholarly nature for use within an educational institution in a course of instruction"
- Ss. 29-32.2—exceptions to infringement - Ss. 34(1)—civil remedies; 35—damages & profits; 37—Federal Court jurisdiction - S. 34.1—presumption that copyright subsists and that the author, etc., is owner of it - S. 35—damages and account of profits - S. 37—concurrent jurisdiction of Federal Court - S. 38—right to recover possession of infringing copies - S. 38.1—statutory damages - Ss. 39—injunction only remedy when defendant unaware of copyright; 40—no injunction once construction of building has been commenced - S. 41—3-year limitation - Ss. 42-43—criminal remedies when work is exploited for commercial purposes
______________________________________________________________________________________ 2) LITERARY WORKS - Section 3 gives the general infringement rights that are the sole right of the copyright owner: 3(1) Copyright in works - "For the purposes of this Act, “copyright”, in relation to a work, means the sole right to produce or reproduce the work or any substantial part thereof in any material form whatever, to perform the work or any substantial part thereof in public or, if the work is unpublished, to publish the work or any substantial part thereof, and includes the sole right (a) to produce, reproduce, perform or publish any translation of the work, - The "translation" right (c) in the case of a novel or other non-dramatic work, or of an artistic work, to convert it into a dramatic work, by way of performance in public or otherwise, - The "dramatization" right (d) in the case of a literary, dramatic or musical work, to make any sound recording, cinematograph film or other contrivance by means of which the work may be mechanically reproduced or performed, - The "recording" right (e) in the case of any literary, dramatic, musical or artistic work, to reproduce, adapt and publicly present the work as a cinematographic work, - The "film" right (f) in the case of any literary, dramatic, musical or artistic work, to communicate the work to the public by telecommunication, - The "telecommunication" right (h) in the case of a computer program that can be reproduced in the ordinary course of its use, other than by a reproduction during its execution in conjunction with a machine, device or computer, to rent out the computer program, and - The "computer program rental right" (see also ss.3(2) and s.3(3)) and to authorize any such acts"
- "In any proceedings for infringement of copyright in which the defendant puts in issue either the existence of the copyright or the title of the plaintiff thereto, (a) copyright shall be presumed, unless the contrary is proved, to subsist in the work, performer’s performance, sound recording or communication signal, as the case may be; and (b) the author, performer, maker or broadcaster, as the case may be, shall, unless the contrary is proved, be presumed to be the owner of the copyright" - The next case is a classic example of a work becoming immensely popular and an individual coming out of the woodwork to claim that it was based on their original idea… - It is also an example (like Nichols and Baigent, about The DaVinci Code) of the problems in proving infringement by somebody who both denies having copied, and clearly did not copy literally but only (at most) copied elements of the original… Preston v. 20th Century Fox Canada Ltd. (1990 Fed. Ct. Trial. Div)…Difficult to prove infringement F: - Preston, a Canadian writer, took action for infringement of copyright in his literary work (a script called "Space Pets") and the Ewoks in the work…basically, they're suing George Lucas and Lucasfilm - P alleged D's copied Return of the Jedi the TV series Ewok Adventure and in various other mediums - Now they want a declaration of copyright infringement in his literary work "Space Pets", an injunction, general damages of a million dollars, accounting for profits and interest - P claimed that he delivered notes to a friend, David Hurry, to produce a script, which included among its characters two small furry animal species with primitive human characteristics, Olaks and Ewoks, who live on a previously unexplored planet in space…they then sent the script to George Lucas - However, no reply or acknowledgement was received from Lucas and the script was not returned - Lucas was currently making The Empire Strikes Back, and claimed Lucasfilm had a policy and practice to return all unsolicited scripts or materials, other than mail that was deemed to be fan mail, and to isolate Lucas from reception of all incoming mail…claimed that there is no record of the script "Space Pets" having been received from Hurry - Basically, D's denied copying or using any work of P or that Preston was the author of the script - Preston didn't claim that there had been a copying of the plot or dialogue of the script in the film I: - Did George Lucas copy the Ewok character or other significant features from the script "Space Pets"? - Can copyright exist in the name "Ewok" and the description of the character as depicted in the script? - Was Preston author of the script "Space Pets" so he could claim copyright in it as an artistic work? J: - No, for George, the action is dismissed…Lucasfilm didn't infringe P's copyright interest A: - Evidence of access by Lucas to the script "Space Pets" is not direct, but at best is circumstantial - Therefore, Preston will have a problem showing not only whether or not Lucas actually saw the original script, but also that there was a substantial similarity between the two - However, access may be inferred where the work complained of as copying is found to contain substantial similarity with a copyright work - No suggestion here that D's simply reproduced by film the script "Space Pets" - Rather, the claim is that without consent of P they incorporated a substantial part of the script in Return of the Jedi…thus the consideration of similarities between the script and the film - Here, there's no substantial similarity between the script "Space Pets" and the film Return of the Jedi - Name creation process by Preston and Lucas, as well as the concept of the Ewok developed for, and ultimately playing a part in the film, arose from the team efforts of Lucas and his creative staff with little specific artistic direction in advance by Lucas - Instead, many of the detailed similarities can be traced to the common store of folklore about primitive species with human characteristics upon which Lucas was as free to draw as were Preston and Hurry - Drawing upon a common store of information does not in itself answer an infringement claim - It's the expression of ideas, not the ideas themselves, that is the subject of copyright - Can draw upon common stock of ideas…just not copy the expression in literary or dramatic form of another author - Same problem as Nichols…proving general similarity and proving substantial copying of what's original to a screenplay are two different things - The test in determining whether there is a substantiality between works is ultimately whether the average lay observer, at least one for whom the work is intended, would recognize the alleged copy as having been appropriated from the copyrighted work - Substantial similarity is not to be measured only by the quantity of matter reproduced from a copyrighted work, though that may be a significant factor - Similarity is claimed in relation to setting or scenes involving a net trap of vines, the forest habitat and houses of the Ewoks, but those scenes in themselves are not subject to copyright or protected by it - They are standard aspects of productions concerning primitive species or primitive humans drawn from a common pool of folklore - While this would be sufficient to dispose of any claim that D's infringed any right of P's under s.3(1)(d), further consideration must be given to the question of whether the Ewok character, as developed in "Space Pets", is subject to copyright andt eh author's right to produce or reproduce the character is protected under ss.3(1)(d) or (e), and if so whether that character was substantially reproduced in Return of the Jedi - While no copying in dialog or plot, the most one could say is that the name and general features were copied, which the Federal Court held couldn't amount to real copying - While generally there cannot be copyright in a mere name, where the name identifies a well-known character, copyright may be recognized in the name and the associated character - In this case, characteristics set out in the script do not delineate the character of the Ewok sufficiently original to Preston to warrant recognition as a character subject to copyright - It cannot be said that the Ewok character as developed in the script is widely known by reason of the script in which the plaintiff claims copyright - Therefore, the character of the Ewok as developed in the script "Space Pets" is not itself subject to copyright - After this argument, analysis focuses to whether Preston was the author of the script - Here, sure, the characters were similar, but the plot and everything else was different - Like Nichols, proves that it's difficult to prove infringement when there is no substantial copying R: - In order to successful sue for copyright infringement, a plaintiff must not only prove there was copying, but that the infringer specifically copied the plaintiff's independent creation ______________________________________________________________________________________ 3) DRAMATIC WORKS - Again, see the s.3 for the "reproduction and performance rights" (general), "translation right" (a), "novelization right" (b), "recording right" (d), "film right" (e), and telecommunication right" (f) - The next case illustrates secondary infringement, which can impose liability for the use of copies that were perfectly legal copies when and where they were made, but infringe Canadian copyright… Roy Export Co. Establishment v. Gauthier (1973 Fed. Ct. Trial Div.)...Successful sue secondary infringer F: - P is the owner of the original cinematographic works entitled "Pay Day" and "The Gold Rush" written, directed and produced by Charlie Chaplin by virtue of registration in name of Roy - Copyright subsists in Canada for the life of Chaplin plus 50 years…Roy's still living, so P alleges he has the sole and exclusive right to possess, distribute, and lease in Canada prints of the two films - Gauthier purchased prints of such works from a US vendor and leased them to various organizations - D had no knowledge of the subsistence of copyright in the works at the time of purchase and first distribution of the films but he continued to lease the works in Canada without consent of the author after notice of copyright from the solicitors for P - P wants D to stop based on secondary infringement provisions…he was renting out the film and he knew or ought to have known he was renting out an infringing copy in Canada under s.27(2)(a) - No doubt of the good faith of D…he is a film collector of old 16 mm. films (as opposed to 35 mm. films which are used in commercial theatres) and rents the films to churches, schools, hospitals, ect… - However, following receipt of P's counsel's letter, he could no longer claim ignorance that it was contended that his use constituted an infringement of P's copyright in Canada I: - Was copyright infringed after Gauthier received the letter of notice? J: - Yes, for P, P's Canadian copyright in the two films have been infringed by the defendant. A: - "Pay Day" was made in 1922, a date before the coming into force of the present Copyright Act which was enacted in 1921 and came into force in 1924 - The applicability of the present Act to such work would appear to depend on circumstances such as citizenship of the author and place of first publication of the work - In the present case, the film encompassed a dramatic work - The copyright in that dramatic work in the form of a cinematographic work endured for a term of the life of the author and 50 years after his death - One of the rights of the copyright owner in the dramatic work is the sole right to publicly perform the work…this right is defined in s. 3(1) of the Copyright Act - In this case the defendant authorized the public performance of the work and infringed that right - P is entitled to an injunction restraining further infringement of the copyright in cinematographic works and distribution, leasing, offering to distribute or lease prints of such works - P is also entitled to an accounting of profits in the amount of $200, and delivery up of all copies of the works owned or controlled by or in the possession of the defendant (s.38(1)) - He was infringing, was renting it out with knowledge, and this was enough for civil liability R: - Demonstrates that simply because an individual purchases and imports legal copies can be caught by secondary provisions under the Copyright Act because the registered owner of the Canadian copyright can pursue an infringement action under s.27(1) - In Roy, the court granted an injunction against any further renting out of the movies, an accounting of profits to the plaintiff (even though they were minimal), and an order to recover the infringing copies - Remedies are located in s.34 and s.35 of the Act: 34(1) Copyright - "Where copyright has been infringed, the owner of the copyright is, subject to this Act, entitled to all remedies by way of injunction, damages, accounts, delivery up and otherwise that are or may be conferred by law for the infringement of a right" 35(1) Liability for infringement - "Where a person infringes copyright, the person is liable to pay such damages to the owner of the copyright as the owner has suffered due to the infringement and, in addition to those damages, such part of the profits that the infringer has made from the infringement and that were not taken into account in calculating the damages as the court considers just" - In sum, a complainant can claim damages if they can prove them (ie: market sale, loss of sales), which Roy proves might be difficult
- "Subject to this section, a copyright owner may elect, at any time before final judgment is rendered, to recover, instead of damages and profits referred to in subsection 35(1), an award of statutory damages for all infringements involved in the proceedings, with respect to any one work or other subject-matter, for which any one infringer is liable individually, or for which any two or more infringers are liable jointly and severally, in a sum of not less than $500 or more than $20,000 as the court considers just" - This allows the court to fix an arbitrary amount between $500 and $25,000 - If a claimant will have a tough time proving damages or account of profits (or if it won't amount to anything), this can be an alternative to the regular assessment of damages - However, in most cases a claimant really wants an injunction…where injunctions may be only remedy: 39(1) Injunction only remedy when defendant not aware of copyright - "Subject to subsection (2), in any proceedings for infringement of copyright, the plaintiff is not entitled to any remedy other than an injunction in respect of the infringement if the defendant proves that, at the date of the infringement, the defendant was not aware and had no reasonable ground for suspecting that copyright subsisted in the work or other subject-matter in question" 39(2) Exception where copyright registered - "Subsection (1) does not apply if, at the date of the infringement, the copyright was duly registered under this Act" ______________________________________________________________________________________
- "It is not an infringement of copyright (b) for any person to reproduce, in a painting, drawing, engraving, photograph or cinematographic work (i) an architectural work, provided the copy is not in the nature of an architectural drawing or plan, or (ii) a sculpture or work of artistic craftsmanship or a cast or model of a sculpture or work of artistic craftsmanship, that is permanently situated in a public place or building"
- Note: this is a good case for analytical approach quotes Shewan v. Canada (Attorney General) (1999 Ont. SC)…Not substantial copying of words in musical work F: -. Shewan was a folk singer who lived in the Yukon…in 1978 she wrote a song entitled "Yukon Magic and Mystery"…first two lines were "Yukon, will you set us free/With your Magic and your Mystery" - The song was recorded and though it had no commercial release, it was played on CBC radio in the Yukon occasionally until 1985…Shewan also performed song live at various festivals from 1978-1980 - She stopped touring in 1983 and neither toured nor performed since that time…unfulfilled potential - There was no reference to the song in any of Shewan's promotional material, resumes, or newspaper articles about her career, and the song was not included in rough notes prepared for a list of songs to be included on a proposed album that was never recorded…moved to Ontario in 1984 - In 1987, the Department of Tourism of the Yukon began to use the slogan Yukon the Magic and the Mystery, which had been developed for the Yukon Pavillion during Expo 86 - Shewan, while conceding the Yukon slogan isn't a song or a performance and does not compose lyrics, or even a direct quote from her song, asserted that it would have been impossible for anyone in the Yukon to develop that slogan independently…claimed it "piggybacks" essential elements - She claimed that the words of the slogan and the words of her song were indistinguishable, and that everyone in the Yukon would assume that she had endorsed or was somehow connected to the slogan I: - Is there substantial reproduction of the song in the slogan? Was the slogan, which didn't contain music or lyrics from P's song, really copied from P? Did P's song attain such prominence and was P so well known that any usage of the words magic and mystery would be undoubtedly linked to P? - Could "Yukon the Magic and Mystery" be created independently? J: - No, for Canada, P wasn't prominent in the community and as a consequence there would not be a connection in the mind of the public between Shewan's song and P herself A: - s.3(1) gives the owner the sole right to produce or reproduce the work or any substantial part in any material form; s.5(1) gives copyright in every LDMA work - Here, P's primary submission is that her musical copyright in her work (ie: song) was infringed - After giving a plain and ordinary meaning to s.2 definition of "musical work", copyright infringement of a musical work required copying of melody or harmony (ie: creating sheet music) - Here, the slogan was not accompanied by any melody or harmony - Therefore, slogan wasn't within the s.2 definition of a musical work…therefore no infringement - Copyright again does not protect the idea itself, only the expression of ideas - P asserted she was the only person to have linked together "Magic and Mystery" with the Yukon - Judge didn't rule out substantial copying of words wouldn't constitute copyright infringement - However, here, the words "Magic and Mystery" are an idea, not expression in a fixed form - "Magic and Mystery" aren't original words (think the Beatles "Magical Mystery Tour" album) - While the song is copyrightable, the government didn't copy the lyrics, they just copied the concept that was previously articulated in her song - P also claimed that the slogan presented a reproduction of a substantial part of her song - However, just a few words from the song without musical accompaniment can't constitute a substantial part of the song in question - With respect to passing off, Shewan failed to prove that she had a sufficient reputation in the community to establish a connection between her song and the slogan used by the government - At the time the slogan was first used, her song was no longer being played on the radio - Her heyday was around 1980…the slogan was used for Expo 86, when she was forgotten - As such, the potential confusion in the minds of the public never exceeded the threshold of speculation, conjecture or argument - B: A few people listening to an obscure song on Yukon North Radio doesn't make you famous R: - Copying a portion of a non-musical reproduction of a few words in a song does not constitute expression for the purpose of copyright infringement ______________________________________________________________________________________ Directory: application -> media -> cans application -> Application for Two-Year Extension in Authorized Period of Use of Micro Data application -> Application forms please fill out and sign the adequate application form application -> Application form cans -> Law 205: criminal law full Year can (2005-2006) Jennifer Lau cans -> Law 120 criminal cans -> Law 120 – Criminal Law – can silvana Lovera Professor Emma Cunliffe Table of Contents cans -> Testimonial or documentary or real must be: Relevant cans -> C’right: overview, 2 cans -> Effect of a clause cans -> Criminal Law can table of Contents Download 0.93 Mb. 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